If Judge Grosscup's opinion is to stand as the law, then one of the great, props of government is more than.merraced, for this great principle of construction is a part of our unwritten constitution, an inheritance of.the.wisdom of the ages, a part of England's. unwritten constitution and most sacredly preserved by her judiciary.

The fact is, that this principle is SO woven into the fabric of our government that the very menace of it should be a sufficient ground upon which to claim the jurisdiction of the United States Supreme Court. It is but a matter of construction whether the Supreme Court should regard it of such vital importance as to extend its jurisdiction to cover it.

We firmly believe that had the question arisen in John Marshall's time, he would not have hesitated to have sustained the right of the Supreme Court to have considered it so much a part of the constitution as to be equal to anything written in the constitution. He was a firm believer in the idea that there are certain great principles which are so much a part of the constitution, that they must be read into it, as a matter of proper construction and our present federal supreme court has sustained this view frequently.

Landis investigated the New Jersey Standard Oil Company's financial standing and ability to pay the fine, still he had the right, regardless of this investigation, to enter up the fine imposed. But leaving out of consideration that part of Judge Landis' opinion relating to the New Jersey corporation, which the Court of Appeals condemns, if ever there was an opinion which should be taken up on a writ of certiorari to the Supreme Court, this is that one, for it is utterly impossible to escape that gross error would imbue any opinion following that of Judge Grosscup, such as we have pointed out.

NOTES OF IMPORTANT DECISIONS

STATUTE OF FRAUDS-SUFFICIENCY OF WRITING-CONTENTS OF MEMORANDUM AND DESCRIPTION OF LAND.-In Cunha v. Gallery (R. I.), 69 Atl. Rep. 1001, the question of the sufficiency of a memoran. dum in writing to take a prosecution out of statute of frauds is dismissed. In this case the defendant gave the plaintiff a memorandum in writing, as follows: "I have sold this place to Manuel J. Cunha for $2,100 cash, and is all clear of mortgage. Signed, Catherine M. Gallery." Defendant also gave plaintiff a deed, which contained the description of the property so agreed to be conveyed.

Questions of law were certified up to the supreme court as follows:

"(1) Was the memorandum in writing above referred to a sufficient memorandum to sat isfy the statute of frauds? (2) Did the deed alleged to have been delivered to the plaintiff by the defendant, as above referred to, constitute a part of the memorandum in writing? (3) Was the above memorandum, together with the deed above referred to, a sufficient memorandum in writing to satisfy the statute of frauds?"

The court then proceeds to answer these queries as follows:

In Ray v. Card, 21 R. I. 362, 43 Atl. Rep. 846, the words of description were "that lot," and the description was held to be insufficient to answer the requirements of the sta tute; the court holding that, "while resort may be had to parol evidence to fit the description to the land, such evidence is inadmissible where there is no description." We are of the opinion that the case at bar is ruled by this decision, and accordingly we answer the first question in the negative.

Chancellor Kent, in his observations on the requirements of the statute, says (2 Kent, Comm. *511): "Unless the essential terms of the sale can be ascertained from the writing itself, or by a reference contained in it to something else, the writing is not a compliance with the statute; and if the agreement be thus defective, it cannot be supplied by parol proof, for that would at once introduce all the mischiefs which the statute of frauds and perjuries was intended to prevent." The memorandum in question contains no reference to any other document, and we are clearly of the opinion that it is not competent to consider the deed alleged to have been delivered as a part of the memorandum required by the statute. It necessarily follows that the second and third questions must also be answered in the negative.

The papers in the cause may be sent back to the district court of the Eighth judicial district, with the decision of this court upon the questions submitted certified thereon.

In line with the principal notes, see Mentz v. Newwitter, 122 N. Y. 491, 25 N. E. Rep. 1044, where it is held that the memorandum of a contract for the sale of land must show without aid of parol proof, the essentials of the agreement, including the subject matter of the sale, the terms, and the names or descriptions of the parties also.

DELICTIOF AC

EVIDENCE OF-CONFESSION CUSED.-In People v. Ranney (Mich.), 116 N. W. Rep. 999, occurs a very able discussion of a subject of proof of corpus delicti by the confession of an accused person. The defendant procured funds on a check drawn on a New York bank, which check was forwarded through the usual channels and returned unpaid. It was contended on the part of the defendant that there was not sufficient proof of the commission of the offense. He had made a confession, and the proposition was advanced that the commission of the felony cannot be proven by the extra judicial confession of the accused. In other words, that his guilt could not be determined by his confession that the check was worthless, and was by him known to be worthless; that the people were bound to show presentation of the check to the bank on which drawn, if such an institution existed; that it was not drawn against funds; that payment was refused.

As supporting the general rule that the corpus delicti may not be proved by the naked extra judicial confession of the accused, the following authorities are cited: 12 Cyc. 483; 6 Am. and Eng. Ency. 582;

Wharton Criminal Evidence (eighth edition), Pars. 632, 633; People v. Lane, 49 Mich. 340, 13 N. W. Rep. 632.

The court then discusses the question as follows: "The question presented leads to the inquiry: What is the corpus delicti in a case like this one? Mr. Wigmore (vol. 3, par. 2072) says that an analysis of every crime with reference to this element of it, reveals three component parts; first, the occurrence of the specific kind of injury or loss (as in homicide, a person deceased; in arson, a house burnt; in larceny, property missing); secondly, somebody's criminality as the source of the loss these two together involving the commission of a crime by somebody-and, thirdly, the accused's identity as the doer of this crime; that the term corpus delicti seems in its orthodox and its logical sense to sig nify merely the first of these elements, namely, the facts of the specific loss or injury sustained, although some judges (Chief Justice Shaw in Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711, and Chief Justice Church in People v. Bennett, 49 N. Y. 137, among others) have held that it also includes the second element. I do not find any general rule laid down by the decisions of this court. Language is employed in People v. Hall, 48 Mich. 482, 485, 12 N. W. Rep. 665, 42 Am. Rep. 477, which indicates that in cases of homicide the corpus delicti involves the death and, also, its character, whether probably caused by some one other than the deceased. See, also, People v. Aikin, 66 Mich. 460, 472, 474, 33 N. W. Rep. 821, 11 Am. St. Rep. 512; People v. Parmelee, 112 Mich. 291, 294, 295, 70 N. W. Rep. 577. The rule that the corpus delicti must be proved by some evidence other than the confession of the accused-that the confession must be corroborated-is recognized in People v. Lambert, 5 Mich. 349, 366, 72. Am. Dec. 49; People v. Isham, 109 Mich. 72, 67 N. W. Rep. 819; People v. Hawksley, 82 Mich. 71, 73, 74, 45 N. W. Rep. 1123; People v. Kemp, 76 Mich. 410, 416, 43 N. W. Rep. 438, and People v. Hess, 85 Mich. 128, 132, 48 N. W. Rep. 181, but without determining, in either case, except perhaps inferentially, what constituted the corpus delicti. In some cases the idea has been expressed that the nature of the offense charged was such that no proof of the corpus delicti could be made as of a separate element of the offense. Such are the cases of People v. Swetland, 77 Mich. 53, 63, 43 N. W. Rep. 779, and People v. McGarry, 136 Mich 316, 324, 99 N. W. Rep. 147. In People v. Swetland it was said: "There are some cases where the corpus delicti-generally in homicide is clearly separated and distinct from

the question as to who committed the offense, if any is found to have been committed. In such cases the evidence to establish the corpus delicti must first be given, before acts or admissions of the accused can be put in evi dence. But the present case is one where the body of the offense-the uttering of a forged instrument, knowing it to be false-is so intimately connected with the question whether or not the respondent is guilty of the crime that there can be no such separation. The corpus delicti in this case depends entirely for its existence upon the acts and intent of the respondent, so that her acts and admissions, if admissible at all, were admissible at any stage of the proceedings upon the trial.'"

It is held that the confession should be corroborated as to the corpus delicti. As to this the court says:

"There is evidence undisputed-indeed, corroborated by respondent-that he applied to Mr. Rice, the keeper of the hotel, to cash the check, that the check was cashed, and respondent received the money. The check was forwarded in the usual course of business to New York, and was returned unpaid. It has mot been paid, and Mr. Rice has never received his money. Before the check was cashed, and as an inducement, respondent, who was at the hotel with a woman not his wife, and owed the proprietor for entertainment, stated that they were going to Muske gon for three or four days, and would then return to the hotel, and that meantime Mr. Rice could find out whether or not the check was good; that he would leave a big trunk and a typewriter in it. He left the trunk, but no typewriter."

NAL DECREE AFTER ONE YEAR.-A recent decision construing an Illinois statute, but of more than usual interest, was handed down by Judge Ball of the superior court of Cook county, Chicago, Ill., on May 5th, 1908, reported in 40 Chicago Legal News, 320, the case being that of Richard O. Kruger v. Pearl L. Kruger.

The petition is in equity, and alleges that the defendant procured a divorce from Richard O. Kruger, and that by the terms of the decree he was ordered to pay $60 alimony monthly during the lifetime of the two, with the provision that in case she should remarry the payments would cease. The divorce was granted on July 3d, 1907, in the same court, but the petition alleges that on March 11th, 1908, she was married in Indiana.

The section of the statute under which the divorce was granted contains a provision that neither parties shall marry again (unless to

each other) within one year from the date of the decree, and that any person marrying contrary to such provisions "shall be punished by imprisonment in the penitentiary for not less than one year, nor more than three years and said marriage shall be held absolutely void." The provisions of the statute were set up by the wife in her answer, and the wife also alleged that on her return to Illinois she was informed that the Indiana marriage was void, and that she thereupon filed suit to annul the same. She also set up a like violation of the statute by the petitioner.

The court sustains the validity of the act of the legislature, citing Olson v. State, 219 Ill. 40. The court says that if the marriage of Pearl L. Kruger to Boud is valid the petitioner should be discharged from the further payment of alimony coming due after March, 1908. But if such marriage is void he is still bound for his payment. The court then says:

"In interpreting a decree of divorce the statute relating to divorces is a part of and must be read into it. So doing, it is evident that the divorce is not absolute. It incapacitates the parties thereto from remarrying (except to each other) for the period of one year from the date of the decree. A violation of this provision is a violation of the decree, for which the offending party could be brought before the court granting the decree and punished, as for a contempt of court. In such case the offender could not successfully reply by setting up that the violation occurred in a foreign state, to which he or she had gone for the purpose of avoiding the effect of the decree. The law will not suffer its commands to be thus nullified. The decree is disobeyed whether the forbidden marriage occurred with in or without this state. The general rule is that a marriage valid where entered into is valid everywhere. This rule is recognized under the law of comity; and it will be enforced in a foreign jurisdiction, unless it is prohibited by the laws or by the public policy of that jurisdiction. The public policy of a state is found in its constitution or in its statutes. If the constitution be silent upon the subject, and the legislature has spoken, the public policy of the state is what the sta tute indicates. Ins. Co. v. Yates, 214 Ill. 277."

There are comparatively few, if any, other jurisdictions where divorces of this character are provided by statute. While the court does not expound the meaning of the provision, it would seem that a divorce granted under the provisions of the act in question is not a divorce within the usual meaning of that term until the expiration of the year pro

vided for. At the end of the year the order of court, which has been in but partial effect, becomes vitalized and effective and the divorce is absolute.

As to the effect in another state of the marriage, the court has this to say:

"It is assumed that the second marriage was valid in the state where it was performed. Had the parties to it left this state, and so long as they remained aliens as to this state the marriage would continue to be valid. But while they remain citizens of this state they are governed by its laws. This view is sustained by the highest courts of England: (Brook v. Brook, 9 House of Lords Cases 212; Sussex Peerage Case, 11 Clark & Fin. 85), by well considered decisions in several of our sister states (Pennegar v. State, 87 Tenn. 244; Williams v. Oates, 27 N. C. 535; Estate of Stull, 183 Penn. 625), and by our best text writers. Story on Conflict of Laws, secs. 86, 87; Wharton on Conflict of Laws, secs. 159, 165b."

WHAT LIABILITY DOES A BANK ASSUME AS TO THE QUALITY AND QUANTITY OF THE GOODS DESCRIBED IN A BILL OF LADING INDORSED BY IT?

I have been asked to discuss the question: "What liability does a bank assume as to the quality and quantity of the goods. described in a bill of lading indorsed by it?" and have consented to do so.

A bill or lading may be defined as a written acknowledgment by a carrier of the receipt of certain goods, and an agreement for a consideration, to transport the same to a specified place, and there deliver them to the person designated, or to his order.

They have been in use from time immemorial, and are indispensable to commerce as a symbol of ownership of the property they represent. They are negotiable in the sense that they possess the quality of transferability; but not negotiable in the sense that a bill of exchange is, for the latter is truly said to be: "A 'courier without luggage' whose countenance is its passport;" while a bill of lading is at most but a symbol of ownership of a thing not seen.

The object sought by legislative enact

ment declaring them negotiable was doubtless intended to authorize a transfer of title by indorsement and delivery, thereby enabling the assignee of such a bill to do what he could not do at common law-maintain an action in his own name, and these things constitute negotiability.

The law should encourage, and does encourage the use of bills of lading as a safe and convenient medium of transferring the title to property in transit. The liability attending such a transfer is the question before us.

At the outset, I may say that the degree of liability a bank assumes as an indorser of a bill of lading depends upon the circumstances under which, and the manner in which, such a bill is indorsed. I think I may lay it down as a rule without exception that the owner of a bill of lading, whether he is the consignor or one subsequent in the line of ownership, who indorses it without restriction as an original instrument of sale and transfer, thereby warrants its validity, his ownership thereof and that the quality and quantity of goods therein mentioned are described with reasonable accuracy.

This liability does not attach by reason of the arbitrary rules of the law merchant. applicable to bills of exchange, for that instrument is intended to, and does circulate as money, and of course all persons who pass it by indorsement receive value for it, and vouch for it in all its parts; but upon the other ground, that he who puts an instrument in circulation which may be negotiated, and he who passes it on to others, do, by their indorsements, warrant it genuine and descriptive of what it purports to represent. Put in another form, the liability emanates from the doctrine of implied warranty, holding that he who sells. and delivers an article, commodity or thing impliedly warrants it to be of the kind and character represented, and also to contain the quantity sold, as well as the fact that he is the owner.

Any other rule would discredit an in

strument which, in the commercial world, is only second in importance to the bill of exchange and promissory note.

If, therefore, a bank becomes the purchaser of a bill of lading and, having acquired the same, sees fit to make unrestricted indorsements on it; then it is liable for the quantity and quality of the goods described therein, and the measure of liability in such a case would seem to be the difference between the actual value of the goods received by the consignee and the value of the goods, had they been as warranted, but not to exceed in any case the value as agreed upon in the original contract.

But in the usual and ordinary transaction of commercial business, banks rarely ever purchase bills of lading outright. Indeed, to do so, the bank possessing only ordinary charter privileges might infringe upon the doctrine of ultra vires; but there are many difficulties attending the raising of that question, and the limitation in that regard would often go unchallenged.

The purchase of bills of lading by banks is so infrequent that I deem it unnecessary to say more as to that feature, and shall pass to another phase of the case in which the bill of lading performs a more useful service. I refer to the practice so prevalent among banks of accepting these bills as collateral security.

This purpose

more

is accomplished in a variety of forms. The bill is sometimes taken out in the name of the bank by the consignor, and in that form deposited as collateral. It is sometimes assigned by the consignor in blank, or to bearer, for the same purpose, but commonly taken out by the consignor in his own name, and assigned directly to the bank. In any case, it is accepted by the bank as collateral security for the payment of the instrument discounted-usually note or bill of exchange. By such assignment, the bank becomes possessed of the right to collect the price of the goods represented by the bill of lading from the purchaser or consignee, upon surrender to

a

him of the bill of lading. This, of course, requires an assignment by the bank to make a connected chain of title which the carrier, to whom it is finally surrendered upon delivery of the goods, has a right to demand.

An assignment under these circumstances is an incident to the payment of the note or acceptance of the draft, and no liability attaches to the bank by making it; for the bank in either case, it is clearly seen, is merely the channel through which the purchase price of the goods represented by the bill of lading is collected. If, upon examination by the consignee, it is found that the goods are not of the quality purchased, or that quantity is lacking, the bank cannot be held, for the reason that it is not a party to the sale; and the vendor alone, with whom the principal transaction was had, must be looked to for damages on account of deficient quantity or inferior quality.

The reasons for such a rule are numerous, but not least among them is that the bank is not a party to the sale, and knows nothing of, nor is it interested in, the equities between the original parties to the sale. Again, its relation to the whole transaction. is covered by an instrument of the law merchant, either the promissory note or the bill of exchange. The payment of the one, or the unconditional acceptance of the other by the consignee furnishes conclusive evidence that the maker of the note or the drawer of the bill was authorized to demand of and receive from the consignee the purchase price of the goods.

While a few courts of last resort have held that a bank by indorsing a bill of lading deposited with it as collateral security is liable for the quality and quantity of goods described in it, the great weight of current authority, both in England and the United States, is to the contrary effect. Any other rule than the one adhered to by the majority of the courts would, under present business customs, cause a wide disturbance in commercial affairs.

Springfield, Mo.

J. T. WOODRUFF.